. . . who says it all depends on what the meaning of “is” is. A Ninth Circuit opinion filed today begins: “This appeal presents the single, seemingly straightforward question whether the word ‘is’ really means ‘is,’ at least as that word is employed in 25 U.S.C. § 81.” And it turns out the answer isn’t that easy: Motivated largely by the plain meaning of Section 81—but after also taking into account related statutes, relevant legislative history and the language of the contract itself—we conclude that the word “is” means just that (in the most basic, present-tense sense of the word)[.] As if to prove the answer isn’t simple, there’s…
-
-
Appeal That Fee Award
I don’t usually review unpublished decisions for material for this blog. But unpublished decisions, even if they don’t create new law, can have some interesting points. (Just ask Bisnar | Chase.) California Attorney’s Fees has a good post, based on an unpublished decision filed last Monday, reminding everyone to appeal separately from a fee award in addition to any appeal from the judgment. The appellant in the case filed an untimely notice of appeal from the judgment that did not include an appeal from the subsequent fee award, then filed an untimely notice of appeal from the fee award. Result: untimely appeal, no jurisdiction, appeal dismissed.
-
You’re Probably Wrong about How Judges Think
Me, too, for that matter. That’s what Judge Posner‘s blurb on the jacket of his book, How Judges Think, seems to say. It seems to me that most commentators tend to agree that judges are often inscrutable on the bench, but many who advise on legal writing seem to assume they know what the judges want. Do we? Says Judge Posner: [M]ost judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. . . This book parts the curtain a bit. You…
-
Hyphenating Your Phrasal Adjectives?
Probably not enough, says Professor Schiess.
-
Offended by Having Your Work Edited?
If so, check out We Are the Products of Editing, by University of Missouri law professor Doug Abrams, in the Missouri Bar’s quarterly magazine, Precedent. Hat tip: Legal Writing Prof Blog.
-
Order Removing Trustee in Ongoing Bankruptcy Proceeding is Appealable
As my first substantive post on this blog pointed out, determining whether a bankruptcy order is appealable can be tricky. 28 U.S.C. § 158(d) gives the Courts of Appeals jurisdiction over appeals from “final decisions, judgments, orders, and decrees entered” either by the district courts or the Bankruptcy Appellate Panel. In In re AFI Holding, Inc., case no. 06-56621 (9th Cir. June 17, 2008), the Ninth faces for the first time the issue of whether an order removing a trustee in an ongoing bankruptcy case is appealable, and, joining several other circuits, concludes that it is because it conclusively resolves a “discrete issue”: Although the bankruptcy proceedings may continue, and here, in fact they…
- Appellate Procedure, Criminal Procedure, Standing to Appeal, Statutory Construction, Waiver of Issues
Court has No Duty During Recommitment Proceedings to Consider Suitability for Outpatient Treatment
In People v. Rish, case no. B198727 (2d Dist. June 16, 2008), Rish appealed from from an order recommitting him to the California Department of Mental Health for treatment as a mentally disordered offender pursuant to Penal Code section 2972. He claimed that the trial court erred by failing to consider whether he was suitable for outpatient treatment, even though he did not raise this alternative in the trial court. The Court of Appeal determines that Rish waived the issue by failing to raise it. As a matter of statutory construction, Section 2972, subdivision (d) does not impose a duty on the court to evaluate suitability for outpatient treatment sua sponte. The court reached the…
-
UC Davis Law Students Procure Ninth Circuit Reversal
Congratulations are in order for UC Davis law students Anjuli Fiedler and Rachel Golick who, under the supervision of UC Davis School of Law professor Carter C. White, represented and obtained a reversal for the appellant in Simpson v. Thomas, case no. 07-16228 (9th Cir. June 11, 2008), Maybe this happens more frequently than I suspect, but it strikes me as a pretty big deal. Especially since the appeal raised two issues of first impression.
-
A Glitch In Kozinski’s Presiding over Obscenity Trial?
Ninth Circuit Chief Judge Alex Kozinski may be feeling a little embarrassed today. According to this piece in the Los Angeles Times, he accidentally posted materials from an obscenity trial on a publicly accessible portion of his web server that he thought was for private storage. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he…
-
Blogroll Addition: California Attorney’s Fees
Regular readers know I am fond of covering attorney’s fee cases. Now there’s a blog about nothing but California attorney’s fees, and it’s called, oddly enough, California Attorney’s Fees. Started less than a month ago, California Attorney’s Fees is a comprehensive blog that reports on both published and unpublished cases and includes several categories related to the appeal of fee awards, including appealability, appeal sanctions, and deadlines. And, they invite you to help add more. California Attorney’s Fees demonstrates that it is not only newer lawyers who are blogging. The junior of the two contributors, Marc Alexander, has 25 years of law practice under his belt, and his co-blogger, Mike…
-
Justice Gilbert Profiled
Justice Arthur Gilbert, presiding justice of the Second District Court of Appeal, Division Six, was profiled in the Palisadian Post last week. This comes not long after he was honored with The Beacon of Justice Award. Thanks to Curt Cutting of California Punitive Damages blog for the tip.
-
What Happens When a Criminal Defendant Dies While His Case is Pending Before the Supreme Court?
Image via Wikipedia In People v. Arriaga, case no. S149898 (June 2, 2008), the Supreme Court explains the general scheme in a footnote: After oral argument in this case, we were informed that defendant Arriaga died on March 14, 2008. Although defendant’s death will abate his appeal (see e.g., In re Sheena K. (2007) 40 Cal.4th 875, 879; People v. Anzalone (1999) 19 Cal.4th 1074, 1076; People v. Dail (1943) 22 Cal.2d 642, 659), we exercise our inherent authority to retain this case for an opinion in order to resolve the recurring conflict in the Courts of Appeal regarding whether prohibited firearm enhancements should be stayed or stricken under…
- Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Federal Procedure, Plea Bargains, Sentencing, Waiver of Issues
Waiver of Appeal Rights in Plea Agreements
Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v. Cope, case no. 06-50441 (9th Cir. June 4, 2008). Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his…
-
Survey Results — Such as They Are!
Two weeks ago, in response to a post I’d seen elsewhere about judges reading blogs, I put up a survey in the right sidebar that asked readers to choose the description that best described them. During that time, I posted rather lightly, and the blog had a slow few weeks: barely 1300 page views. With 1300 page views, how many survey participants do you think I had? 100? 200? 500? Try 34. I’m no statistics expert, but I figure that puts the margin of error in the results somewhere around 12,000 percent. The only category with zero responses? Judge. The responses broke down as follows: Next time, I’ll do…
-
I’m Still Here
You wouldn’t know it from my blogging output lately, but I’m still here and will continue blogging. I happen to be moving into a new office during a heavy work week, so actually looking at the newly published cases is a real luxury right now. I may get a post or two up this week, but they’re more likely to be links to other blogs rather than original commentary on any new developments. I’ll resume my regular blogging schedule next week. If you haven’t responded to the survey in the right sidebar yet, why not take the opportunity to do it now? The survey comes down Monday morning, June 2.
-
Should There Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality?
Professor Colin Miller at Evidence Prof Blog thinks so, and links to a draft of his essay advocating the exception. The abstract of his essay references Alton Logan, a man wrongfully imprisoned for 26 years while lawyers who knew the identity of the actual killer stood mute in order to protect client confidences: In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald’s. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public…
-
Rehearing Petition Filed in Marriage Cases
What a surprise! A petition for rehearing was filed today in In re Marriage Cases. The petition was filed by the Proposition 22 Legal Defense And Education Fund, but I can’t find the petition on the web anywhere.
-
The Influence of the California Supreme Court
There are apparently a couple articles out there ranking California’s courts, and its Supreme Court, tops in the nation . . . whatever that means. I say “apparently” because I have to take others’ words for it. I’m way too busy to read the articles themselves. For those of you with time, the more recent of the two is here (hat tip: Civil Procedure Prof Blog). Texas Appellate Law Blog has a PDF download of the earlier article. One nugget I gleaned in my quick skim of the more recent article: while the first study ranked California’s Supreme Court #1 in influence on other states, a survey by the U.…
-
Don’t Ask, Don’t Tell . . . and Don’t Dismiss
The military’s “Don’t Ask, Don’t Tell” (“DADT”) policy on homosexual service members is put through the wringer in Witt v. Dept. of the Air Force, case no. 06-35644 (9th Cir. May 21, 2008). The Ninth reverses the district court’s Rule 12(b)(6) dismissal of Major Witt’s complaint alleging that her impending discharge on the ground of homosexuality violates substantive due process, procedural due process, and equal protection. The key to the ruling was the Supreme Court’s decision in Lawrence v. Texas (2003) 539 U.S. 558, On substantive due process, the court determines that Lawrence requires more careful scrutiny of DADT than the Ninth’s previous standard of rational basis review, even though…
-
Tips from Appellate Court Research Attorneys
Donna Bader at Appeal to Reason shares some briefing pointers offered by a couple of attorneys from her local appellate court. I was glad to see a practice of mine validated: “Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do.” There’s plenty more.
-
Participate in My Reader Survey, and More About Judges Reading Blogs
Last Friday’s post about blog-reading judges got my curiosity going about who is actually reading this blog. I’ve placed a survey at the top of the right sidebar asking you which of the responses best describes you. I would appreciate your participation, especially the extra effort any e-mail or RSS subscribers make to actually visit the blog to do so. You only need to respond once (in fact, if I have it set up right, it won’t let you respond more than once, even if you try it on different days). Select your response, then click the “Vote” button. That will take you to a bar graph showing the results…
-
Judges Read Blogs
I’ve noted before some intersections between actual law practice and blogging. There was the blogging jury foreman and the blog where lawyers complained about judges, for example. There are even some blogs by judges (look in the left sidebar). Now, we have at least anecdotal evidence that judges are reading blogs. Texas appellate lawyer D. Todd Smith posts at his Texas Appellate Law Blog about his chance encounter with a blog-reading judge at a professional event. In fact, the judge is not just a blog reader, but a regular reader of Smith’s blog. So, now I’m really curious. I’m going to fiddle around with some of the poll gadgets for…
-
Remember, Don’t Be Shy
I told you last October not to be shy when you move to recover attorney fees. Steele v. Youthful Offender Parole Board, case no. C053553 (3d Dist. May 15, 2008) is the most recent case in point. Defendant appealed from a judgment for plaintiff on a retaliation claim under the Fair Employment and Housing Act (Govt. Code, § 12900 et seq.). Damages were barely $9,000, but plaintiff’s attorney was awarded more than $146,000 in fees, which is almost certainly what drove the appeal. Defendant’s only contention regarding fees on appeal, however, was that the fee award must be reversed because the underlying judgment must be reversed. No claim that the…
-
Footnotes and Same-Sex Marriage
Not a pair of topics that you’d automatically put together, but bear with me . . . Legal writing enthusiasts differ on the proper use of footnotes, and I’ve posted before about the debate. One appellate jurist addressing my law school class advised that if a point is important enough to go in the brief, then it’s important enough to go in the body text of the brief rather than in a footnote. Ray Ward at the (new) legal writer noted that some people even presume that footnotes in appellate briefs are not likely to be read. Yet, I’ll bet every lawyer at least remembers learning in Constitutional law class about…
-
In re Marriage Cases is Out . . . and the Winner Is . . .
Well, I was wondering how quickly the first blog post would go up about this morning’s California Supreme Court decision striking down California’s ban on same-sex marriage (at least that’s how I’ve seen the decision characterized — I haven’t read the 161 pages of opinions yet). The winner, at least among the approximately 200 law blogs in my feed reader, is Legal Pad, at 10:10 a.m. But I doubt they’re speed readers over there, for the post is pretty spartan. But they promise regular updates throughout the day, and since it’s a California law blog, it’s probably the blog to watch throughout the day.
-
A Conspiracy Theorist’s Delight
In In re Complaint of Judicial Misconduct, case no. 07-89012 (Judicial Council of the 9th Cir. May 14, 2008), the complainant was an attorney who was also a plaintiff in a civil action. He filed a complaint against both the district judge and the magistrate judge to whom the district judge referred the civil case. The title of this post relates to the charges made by the complainant. The complainant alleged misconduct regarding both judges with respect to discovery rulings and their decisions to continue with the case following his filing of a notice of appeal. Chief Judge Kozinski’s order characterizes these charges as challenges to the rulings themselves. Complainant…
-
In re Marriage Cases Opinion on the Way
The California Supreme Court filed its notice of forthcoming opinion today for In re Marriage Cases, so expect the blogosphere — legal, political, personal, financial — to be abuzz tomorrow when the opinion is filed. For anyone who’s been under a rock, here’s the summary of the cases from the Supreme Court website: Petitions for review after the Court of Appeal reversed and affirmed judgments in civil actions. This case includes the following issue: Does California’s statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the…
-
Successive or Amended Habeas Petition?
Sometimes, it’s nice to be pro se. I’m not sure the pro se habeas petitioner in Woods v. Carey, case no. 05-55302 (May 13, 2008) would have received the same relief if represented by counsel when he filed a second habeas petition under 28 U.S.C. § 2254 while his first was pending in the district court. Both petitions asserted deprivation of rights in connection with his parole eligibility and procedures, and the district court dismissed the second petition as an impermissible “successive” petition. The court of appeals reverses with instructions to contstrue the later petition as a motion for leave to amend the original petition. The Ninth first lays out…
-
California Supreme Court Rejects De Novo Review of Recusal Determinations
In two cases with a local angle – both originating in neighboring Santa Barbara County and thus reaching the Supreme Court through our local Court of Appeal (Second District, Division Six) – the Supreme Court reaffirms that recusal motion determinations are reviewed only for abuse of discretion. It rejects the justifications offered by the Court of appeal for heightened review in cases of “first impression,” capital cases, or the reviewing court’s “independent interest” in “policing conflicts of interest and addressing potential errors at the earliest opportunity” In Haraguchi v. Superior Court (People), case no. S148207 (May 12, 2008), the Santa Barbara County deputy district attorney assigned to prosecute the accused…
-
Help Write the Revised Ethics Rules
The Rules of Professional Conduct of the State Bar of California are being revised, and you are invited to comment on the proposed revisions to thirteen rules. The revision commission is a long way from done; this public comment opportunity is an intermeduiate step in a long, long process, which is spelled out in detail at the link. But it is your opportunity to be heard, so head to the link if you’re interested. Deadline for comments is June 6, 2008, and they may be submitted in writing wither by snail mail or over the web. Detailed instructions at the link.